The laws that governed the institution of slavery in early Texas were enacted over a fifty-year period in which Texas moved through incarnations as a Spanish colony, a Mexican state, an independent republic, a part of the United States, and a Confederate state. This unusual legal heritage sets Texas apart from the other slave-holding states and provides a unique opportunity to examine how slave laws were enacted and upheld as political and legal structures changed. The Laws of Slavery in Texas makes that examination possible by combining seminal historical essays with excerpts from key legal documents from the slave period and tying them together with interpretive commentary by the foremost scholar on the subject, Randolph B. Campbell.

Campbell's commentary focuses on an aspect of slave law that was particularly evident in the evolving legal system of early Texas: the dilemma that arose when human beings were treated as property. As Campbell points out, defining slaves as moveable property, or chattel, presented a serious difficulty to those who wrote and interpreted the law because, unlike any other form of property, slaves were sentient beings. They were held responsible for their crimes, and in numerous other ways statute and case law dealing with slavery recognized the humanness of the enslaved. Attempts to protect the property rights of slave owners led to increasingly restrictive laws—including laws concerning free blacks—that were difficult to uphold. The documents in this collection reveal both the roots of the dilemma and its inevitable outcome.

Randolph B. "Mike" Campbell is Regents Professor of History at the University of North Texas and editor of the Southwestern Historical Quarterly.

William S. Pugsley is Executive Director of the Texas Supreme Court Historical Society.

Marilyn P. Duncan is Consulting Editor for the Texas Supreme Court Historical Society's History Book Project.

Excerpts:

The institution of African slavery as practiced in the antebellum United States depended on the ownership of humans as chattels, pieces of movable personal property. As chattels, slaves remained property for life with no legally prescribed way to earn their freedom. They had no property rights themselves but could be bought, sold, mortgaged, hired, bequeathed to heirs, and distributed in estate settlements. Clearly, the status of slaves as property defined the institution in vital ways for both the enslaved person and the slave owner and is a key to any study of slavery and the law.

Property rights in organized societies generally require the protection of law, and England, the progenitor of most American legal concepts and practices, had a long experience with the laws of property. Thomas Jefferson's list of the natural rights of man—"life, liberty, and the pursuit of happiness"—came directly, most believe, from John Locke's "life, liberty, and property." Historians can only speculate on why Jefferson changed "property" to the "pursuit of happiness"—a cynic might say that the pursuit of property is the pursuit of happiness—but the change certainly did not lessen Americans' belief in the sanctity of property and the need for laws to protect it. Property rights stood as natural rights protected by an enforceable code of statute and case law.

Treating slaves as property, however, presented a serious difficulty to those who wrote and interpreted the law because, unlike any other form of property, slaves were human. A dramatic explanation of this paradox appears in The Confessions of Nat Turner, William Styron's novelistic "meditation on history" based on the greatest slave rebellion in the history of the United States. Styron has T. R. Gray, Turner's court-appointed lawyer, explain to the slave rebel a "few jurisprudential details" concerning the special nature of human chattels. Turner understood the point before Gray began, but the lawyer went forward with his lesson in what he called the "rights of property" anyhow. If a farmer stops his wagon on a hill and its brake fails, Gray said, and the wagon careens down the slope and crashes into a home, killing a child, responsibility lies with the owner: "Because a wagon is an in-an-i-mate chattel. A wagon can't be held culpable for its acts. You can't punish the old wagon." Gray then turned to what he called "the heart of the matter—which is to say, an-i-mate chattel." "There are both similarities and differences between animate chattel and a wagon," he told Turner. "The major and manifest similarity is, of course, that animate chattel is property like a wagon and is regarded as such in the eyes of the law. . . . By the same token, the major and manifest difference is that animate chattel, unlike inanimate chattel such as a wagon, can commit and may be tried for a felony, the owner being absolved of responsibility in the eyes of the law." "The point is," Gray concluded, "that you are animate chattel and animate chattel is capable of craft and connivery and wily stealth. You ain't a wagon, Reverend, but chattel that possesses moral choice and spiritual volition. Remember that well. Because that's how come the law provides that animate chattel like you can be tried for a felony, and that's how come you're goin' to be tried next Sattidy."

Holding slaves responsible for their crimes was only one of numerous ways that statute and case law dealing with slavery recognized the humanity of the enslaved. Some states, although Texas was not among them, outlawed teaching slaves to read and write, skills that no other form of property could acquire. Also, judges often allowed considerations of slaves' humanity to affect their decisions. This was evident, for example, in a decision rendered by Justice Abner S. Lipscomb of the Texas Supreme Court in Hagerty v. Harwell (1856). Rebecca Hagerty accused her husband of giving a slave woman with whom he had had "adulterous intercourse" and her two children to his sister after she (the wife) had instituted divorce proceedings. The husband's action, according to his soon-to-be ex-wife, denied her an equal share of the three slaves as community property. Judge Lipscomb found it only reasonable that the husband "should trust the mother and her children in such cases to the kindness of his own sister rather than leave them to the injured and infuriated wife, who would possibly, yea probably, inflict severity, cruelty and hardship on them when the offender [the ex-husband] was beyond the reach of her angry passions." Lipscomb noted, however, that in the divorce settlement, Mrs. Hagerty could receive other slaves of equal value to those that she had failed to win in her legal action. The size of the Hagertys' estate gave him the luxury of making a decision that recognized the humanity of the slaves without depriving their masters of any property value. We can only guess at what the decision would have been if the Hagertys had owned just the three slaves in question.

Some historians downplay the legal issues created by the holding of humans as chattels by arguing that slaveholding society did not recognize the humanity of the enslaved. For example, Marxist scholars contend that the capitalist economic system required laws that treated slaves purely as wealth-generating instruments. However, in the words of Thomas D. Morris, the foremost scholar of southern slavery and the law, the Marxist model does not capture "the messy and often complex attempts of Southern judges to deal with the problems created by 'thinking property.'" Nor, for that matter, does any other model, including the argument that the extreme racism of whites denied the humanity of blacks and reduced them to the level of inanimate property. There are simply too many cases in which southern whites, their deeply racist views notwithstanding, sought legal recognition that their slaves and the free blacks they knew personally were human. Thus, in spite of the effort by some historians to say that slave societies treated bondsmen as property pure and simple, the essential question about the laws of slavery remains: how did statutes and court decisions solve the paradoxical issues created by the holding of humans as chattels? An even deeper issue is to understand what those laws tell us today about the realities of what southerners called their "peculiar institution."

The Anglo-Americans who brought slaves to Texas during the 1820s did not have to engage in original thought or research to establish the laws of slavery in their new homeland of Mexico, which gained its independence from Spain in 1821. Most of the immigrants came from southern states and therefore brought with them a thorough familiarity with every aspect of the South's peculiar institution, including its legal framework. As early as January 1824, when Stephen F. Austin, the first Anglo empresario in Texas and a slaveholder himself, promulgated a set of civil and criminal regulations for his colony, he devoted five articles to the protection and regulation of slavery. For example, Austin defined the stealing of a slave or the aiding of a runaway as crimes punishable by fines as high as $1,000 and payment of damages to the owner. If a slave committed a theft, he could be given ten to one hundred lashes unless his owner chose to spare him the punishment by paying a fine equal to three times the value of the property stolen. The first of these rules protected slave property, and the second recognized the humanity of that property.

Thus emigrants from the United States began, almost immediately on their arrival in Mexican Texas, to establish laws of slavery. At the same time, however, the creation of a legal framework to protect their institution faced a serious challenge from their newly independent host nation, which organized as a federation of states under the Federal Constitution of 1824. Fired with revolutionary idealism, national and state leaders in Mexico generally took a negative view of slavery and on more than one occasion threatened constitutional or legal action to restrict or even abolish it. The greatest threat came in 1827 when the constitution of the State of Coahuila and Texas outlawed slavery. But the next year, as was typical throughout the 1820s, practical considerations tempered the idealism of Mexican leaders. Recognizing the need to settle and develop the new nation and knowing that immigrants required assurances about the security of their property, the state legislature of Coahuila and Texas in 1828 permitted slaveholders to bring in their bondsmen as indentured servants—indentured for life and treated legally in essentially the same way as were slaves in the United States. The central government in Mexico City and the state government in Saltillo, Coahuila, did not issue decrees or write laws protecting slave property, but settlers in Texas knew that they had implicit approval for the institution and continued the legal practices necessary to support slavery.

The Texas Revolution of 1835-1836, although not caused primarily by issues relating to slavery, secured the peculiar institution in Texas. Article I, section 9 of the Constitution of the Republic of Texas provided that all "persons of color" who were slaves before their migration to Texas and had remained in bondage thereafter would continue in the state of servitude provided that they were the "bona fide property" of the person claiming ownership. The constitution also protected the right of emigrants to bring slaves into Texas and prohibited any act of emancipation by the Congress of the Republic. The constitutional provisions in section 9 seem clear enough in their intent, but fifteen years later, Justice Abner S. Lipscomb of the Texas Supreme Court gave a strong statement of their effect on the laws of slavery in Texas. "It was manifestly the intention of the convention in framing this provision," he wrote, "to remove all doubt and uneasiness among the citizens of Texas in regard to the tenure by which they held dominion over their slaves." Mexico's "fluctuating and unsettled" legislation concerning the legality of slavery had raised questions as to the ownership of human property, Justice Lipscomb continued, so "the true object and meaning of the provision . . . was to fix and establish the title of the master, whatever may have been the legal effect of Mexican legislation to impair that right and to nullify all Mexican legislation on the subject."

During the years 1836 to 1845, the Congress of the Republic of Texas passed laws necessary to uphold the general provisions of the constitution concerning slavery. Some legislators thought property in slaves so sacrosanct that they wanted to include it with land and homes in a law in 1839 exempting homesteads from forced sale under execution to pay debts. This proposal failed, in part because creditor interests insisted that some form of property remain available for sale to pay debts, but the suggestion indicates the strength of the desire to protect slave property. When Texas became a state in 1845, its constitution repeated all the assurances concerning the right of immigrants to bring in slave property. All existing laws of slavery, including restrictions on emancipation, remained in effect. During the remaining antebellum years, the state legislature occasionally added laws to strengthen the system, and the state supreme court handed down decisions that gave necessary case-law support to the slave code.

Implementing the system of laws necessary to support slavery in Texas also required, at least in the minds of most whites, special legal provisions concerning the presence and behavior of free blacks ("free Negroes" in the terminology of that day). The contention that Africans were inherently inferior served as a key defense of slavery, so blacks who lived successfully as free people undermined the argument that they constituted a race fit only to be property. Moreover, slaveholders feared that free blacks would encourage slaves to run away and otherwise work to undermine the institution. Relatively few free people of African descent lived in antebellum Texas—almost certainly no more than one thousand at any time—but the perceived need to protect slavery from their influence led to harsh constitutional and statutory restrictions. The Constitution of 1836 prohibited "any free person of African descent" from residing in the Republic of Texas without the consent of congress, and the attitude expressed in that restriction remained effective throughout the antebellum years. Free blacks did not enter the state, and the other possible source of free blacks—voluntary manumission—was restricted by the requirement that masters who wanted to manumit a slave could do so only if they provided for removing the slave from the state. Those free blacks who managed somehow to stay in Texas, either by consent of the legislature or by what might be called "falling through the cracks" of society, were not recognized as citizens of the state and faced unequal treatment before the law. For example, regardless of their status as free persons, crimes that they committed drew the same legal penalties that applied to slaves.

Sectional conflict over slavery led Texas to secede from the United States in February 1861 and join the Confederate States of America. Although the desire to protect slavery led to secession, leaving the Union and joining what most whites hoped would be a new nation brought few changes to the laws of slavery. After all, the institution had had all the necessary legal protections while Texas remained in the Union, and disunion created no reason to change the law. Constitutional revisions in 1861 brought only one noteworthy change where slavery was concerned—a prohibition on voluntary emancipation by masters under any circumstances.

Defeat of the Confederate armies in 1865 brought an end to slavery and therefore to the laws of slavery in Texas but not without one final legal complication. When did slavery actually end in Texas? Did Lincoln's Emancipation Proclamation of January 1, 1863, destroy the institution immediately, or did its death come on June 19, 1865, when General Gordon Granger, commander of federal troops at Galveston, announced that Lincoln's proclamation had taken effect in Texas, or did slavery continue until December 1865, when the Thirteenth Amendment became part of the U.S. Constitution? Interested parties argued for different dates, depending on how each date affected slave-related contracts entered into during the war. For example, a person who hired a slave on January 1, 1865, by signing a promissory note due at the end of that year could try later to avoid payment by arguing that slavery had actually ended on January 1, 1863, voiding all property arrangements in slaves after that date. In response, the owner who hired out the slave would insist that slavery existed legally in Texas at least until June 19, 1865, making the note binding at the time it was signed. Texas courts had to decide cases involving the laws of slavery for several years after the institution had ceased to exist.

***

The laws and decrees, constitutional provisions, reports of court decisions, case studies, and reprints of scholarly articles presented in this collection are arranged into four sections. Three sections deal with the laws of Texas in an essentially chronological fashion, covering the Mexican period, the years of the Republic and early statehood, and the Civil War. A fourth section, placed third in the volume because of its place in the story, deals with the laws of free blacks, largely during the antebellum period. Each document has a brief introduction that places it in the context of the legal framework of slavery in Texas and offers some analysis of its significance. The bibliography offers suggestions for additional reading on the broader subject of the laws of slavery as well as the institution's legal history in Texas.

The documents in this collection offer especially valuable insights into the day-to-day realities of slavery because the laws were not written and the cases were not decided with the intention of commenting on the rightness or wrongness of the peculiar institution. Traditional sources such as newspapers and travelers' accounts often reflected a strong emotional commitment either to attack or to defend slavery, and therefore told as much or more about the writer as about the institution. Laws and legal actions, however, were intended only to ensure the security of slave property and settle disputes. In general, legislators and judges agreed that slavery was right, and they had no reason to misrepresent its nature. Perhaps judges made decisions in some cases with an eye to how critics of slavery would read them, but even in those instances, the statements of the facts of the cases open highly revealing windows into the institution. The most reliable sources on any controversial subject are those not created deliberately as statements on that subject. This book offers exactly those kinds of sources.